Sigourney Wade v Stephen Melia
[2014] ACTSC 379
•1 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Sigourney Wade v Stephen Melia |
Citation: | [2014] ACTSC 379 |
Hearing Date(s): | 1 September 2014 |
DecisionDate: | 1 September 2014 |
Before: | Refshauge J |
Decision: | The period of time within which an appeal may be commenced from the convictions and sentences imposed by Magistrate Boss on 26 June 2014 be extended to 3 September 2014. |
Category: | Principal Judgment |
Catchwords: | APPEAL – In General and Right of Appeal – Application for leave to appeal out of time – Appeal not lodged within time due to an administrative error within the office of the Applicant’s solicitor – Respondent does not oppose the application in the circumstances |
Cases Cited: | The Queen v Meyboom (2012) 256 FLR 450 |
Parties: | Sigourney Wade (Applicant) Stephen Melia (Respondent) |
Representation: | Counsel Mr M O’Brien (Appellant) Mr T Shepherd (Respondent) |
| Solicitors Legal Aid (ACT) (Applicant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 66 of 2014 |
Decision under appeal: | Court: Magistrates Court Before: Magistrate Boss Date of Decision: 26 June 2014 Case Title: Stephen Melia v Sigourney Wade Court File Number(s): 165001 |
Refshauge J:
This is an application for leave to appeal out of time against orders made by Magistrate Boss on 26 June 2014. The applicant, Sigourney Wade, made application for assistance to Legal Aid in respect of the appeal that she proposed to bring against those orders. The orders related to sentences imposed by Magistrate Boss on charges of failing to appear pursuant to a bail undertaking and of obtaining goods other than for Commonwealth purposes.
On the first charge, the failing to appear, Magistrate Boss convicted Ms Wade and imposed a sentence of three months’ imprisonment but suspended it forthwith and made a good behaviour order requiring Ms Wade to be of good behaviour for eighteen months and to accept supervision, including a counselling condition.
In relation to the charge of obtaining goods other than for Commonwealth purposes, Magistrate Boss convicted Ms Wade and sentenced her to six months’ imprisonment to be suspended after three months and made a good behaviour order apparently in similar terms to that to which I have already referred.
Ms Wade was subject to a good behaviour order imposed by Special Magistrate Lunney on 29 May 2013. That appears to have been breached, both by the offences for which Ms Wade was convicted, but also by her failure to complete community service work. That order was cancelled, but no further action was taken.
As I indicated, Ms Wade applied for Legal Aid to appeal against the severity of the sentence imposed by Magistrate Boss. She made that application on 4 July 2014, well before the appeal period expired on 24 July 2014. A problem within the office of Legal Aid, which has been frankly acknowledged by Mr M O’Brien, who appeared for Ms Wade, meant that he did not see the application until it was almost too late, certainly from the material available to him, too late to commence the appeal.
The proposed Notice of Appeal sets out the grounds that the sentence imposed was manifestly excessive and that the learned Magistrate did not take into account a diagnosis of Bipolar II disorder.
The facts are in short compass, and I do not need to address them. They relate to the purchase of goods while Ms Wade was employed as a Commonwealth public servant. She purchased $702 worth of electrical and electronic goods which were not necessary for her to purchase on the corporate card that had been provided to her.
I also had a psychiatric report prepared by Dr Anthony Barker which indicated a diagnosis of Bipolar II disorder with current depressive episode and a history of substance use disorder, alcohol, amphetamines and cannabis.
Ms Wade has a short criminal history involving four offences of obtaining property by deception, said to have been committed between 5 and 29 September 2012. I had a Statement of Facts in relation to those matters which related to her, again, misusing a credit card of her employer. On that occasion, Ms Wade was convicted, but released immediately with a good behaviour order.
It is not appropriate on an application for leave to appeal out of time that I express a view on the likelihood of success of the appeal, other than to be satisfied that it is arguable. I have set out in The Queen v Meyboom (2012) 256 FLR 450 the principles that should apply in relation to applications for leave to appeal such as this. In summary, that requires an explanation for the failure to appeal within time, and satisfaction that there are arguable prospects of success on the appeal.
Mr Shepherd, who appeared for the respondent, very properly indicated that in all the circumstances, the respondent did not oppose the application. I accept that that is an appropriate response. There is an explanation for delay, for which Ms Wade cannot be held responsible in any sense.
Having regard to her record, her psychiatric diagnosis and the amount of property involved, notwithstanding that it was a serious breach of trust of her employer and a repetition of a similar offence, it seems to me that it is at least arguable that the appeal has some prospects of success.
Accordingly, I extend to 3 September 2014 the time within which an appeal may be commenced from the convictions and sentences imposed by Magistrate Boss on 26 June 2014.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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